R.09-08-009 ALJ/RMD/tcg
ALJ/RMD/tcg Date of Issuance 5/9/2011
Decision 11-05-016 May 5, 2011
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Order Instituting Rulemaking on the Commission’s own motion to consider alternative-fueled vehicle tariffs, infrastructure and policies to support California’s greenhouse gas emissions reduction goals. / Rulemaking 09-08-009(Filed August 20, 2009)
DECISION GRANTING REQUEST OF CALIFORNIANS FOR
RENEWABLE ENERGY, INC. FOR INTERVENOR COMPENSATION
FOR SUBSTANTIAL CONTRIBUTIONS TO DECISION 10-07-044
Claimed ($): 26,293.02[2] / Awarded ($): $11,730.98
Assigned Commissioner: Michael R. Peevey / Assigned ALJ: Regina DeAngelis
Claim Filed: September 29, 2010
PART I: PROCEDURAL ISSUES
A. Brief Description of Decision: / Resolution of Phase 1 of this proceeding, addressing the scope of the proceeding and the nature of Commission's regulatory authority over entities that sell electric vehicle charging services to the public.B. Claimant must satisfy intervenor compensation requirements set forth in Public Utilities Code §§ 1801-1812:
As Stated by Claimant / CPUC VerifiedTimely filing of notice of intent to claim compensation (§ 1804(a)):
1. Date of Prehearing Conference: / 11-18-09 / Correct
2. Other Specified Date for NOI:
3. Date NOI Filed: / 12-16-09 / Correct
4. Was the notice of intent timely filed? / Yes
Showing of customer or customer-related status (§ 1802(b)):
5. Based on ALJ ruling issued in proceeding number: / R.09-08-009 / Correct
6. Date of ALJ ruling: / 1-28-10 / Correct
7. Based on another CPUC determination: / Please see comments below / CARE qualifies as a §1802(b)(C) customer (“Category 3”)
8. Has the claimant demonstrated customer or customer-related status?
Showing of “significant financial hardship” (§ 1802(g)):
9. Based on ALJ ruling issued in proceeding number: / A.09-02-019 / Correct
10. Date of ALJ ruling: / 9-1-09 / Correct
11. Based on another CPUC determination: / Please see additional comments below / Correct
12. Has the claimant demonstrated significant financial hardship? / Yes
Timely request for compensation (§ 1804(c)):
13. Identify Final Decision / D.10-07-004 / Correct
14. Date of Issuance of Final Decision: / 8-2-10 / Correct
15. File date of compensation request: / 9-29-10 / Correct
16. Was the request for compensation timely? / Yes
C. Additional Comments on Part I:
# / Claimant / CPUC / Comment5-7 / CARE / In ALJ DeAngelis’ January 28, 2010 ruling related to customer status, the ALJ determined that CARE qualified as a Category 2 customer. As demonstrated immediately below and as documented in Attachment 5, CARE also qualifies as a category 3 customer. CARE requests from the ALJ a further determination that CARE also qualifies as a Category 3 customer in this proceeding.
CAlifornians for Renewable Energy, Inc. (CARE) is a non-profit 501(c) (3) corporation that works to educate and encourage the use of alternative forms of renewable energy to avoid dependence on declining supplies of fossil fuels, and the harmful air emissions their use entails. It is a corporation with membership of low income people of color who are residential customers. CARE is authorized by its Bylaws, which were
previously submitted to the Commission in A.07-12-021 and are attached hereto as Attachment 5, to represent the interests of residential customers.
9-11 / A rebuttable presumption of significant financial hardship exists for Intervenor CARE. On September 1, 2009, ALJ Ebke issued a written ruling in A.09-02-019 finding that CARE made a showing of significant financial hardship, met the requirements of Section 1804(a) and was eligible for compensation in that proceeding. Attachment 6. Because this proceeding commenced on August 20, 2009, prior to that ruling, a rebuttable presumption exists that CARE is eligible for compensation in this proceeding.
PART II: SUBSTANTIAL CONTRIBUTION
A. Claimant’s description of Claimant’s contribution to the final decision (see § 1802(i), §1803(a) & D.98-04-059):
Contribution / Citation to Decision or Record (Provided by Claimant) / Showing Accepted by CPUCDuring the first component of Phase 1 proceedings, CARE submitted the following documents:
COMMENTS ON RULEMAKING TO CONSIDER ALTERNATIVE-FUELED VEHICLE TARIFFS, INFRASTRUCTURE AND POLICIES TO SUPPORT CALIFORNIA’S GREENHOUSE GAS EMISSIONS REDUCTIONS GOALS (October 5, 2009)
REPLY COMMENTS ON RULEMAKING TO CONSIDER ALTERNATIVE-FUELED VEHICLE TARIFFS, INFRASTRUCTURE AND POLICIES TO SUPPORT CALIFORNIA’S GREENHOUSE GAS EMISSIONS REDUCTIONS GOALS (November 6, 2009)
CARE also attended the following meetings:
Prehearing Conference (November 18, 2009)
Electric Vehicle Workshop: Accelerating the Installation of Home Charging Equipment (March 16, 2010)
During the initial proceedings of Phase 1 of this rulemaking proceeding, the Commission asked parties to respond to 42 general questions about the “impacts electric vehicles may have on [California’s] electric infrastructure and what actions [the] Commission should take” to mitigate those impacts. Order Instituting Rulemaking, p. 2. In so doing, the Commission sought to “ensure that the charging of these vehicles does not have adverse impacts on our electric system in terms of reliability, while at the same time recognizing the benefits of these vehicles in achieving California's climate change goals.” Id. In its Initial Comments on the Rulemaking, CARE responded to questions 1, 2, 3, 4, 5, 6, 7, 11, 12, 15, 21, 23, 41 and 42. CARE specifically addressed the following:
1. Rates (pp. 1, 3-4);
2. Metering issues (pp. 1-3);
3. Need for residential infrastructure upgrades (pp. 2-3);
4. Regulation of non-residential EVSPs[3] (4-5);
5. General PEV[4] and market questions (pp. 6-11); and
6. Need for the present proceeding to address the needs of low-income citizens of the state by sharing the benefits of PEVs with those underrepresented Californians (pp. 12).
In its reply comments, CARE reiterated some of these points and commented on other parties’ positions. At the prehearing conference, CARE again asked the Commission to include within the scope of this hearing the creation of a program that would spread PEV usage to low-income communities within the state.
Through its participation in the initial component of Phase 1, CARE helped establish, identify, and prioritize issues to be addressed in this proceeding. / Assigned Commissioner’s Scoping Memo, pp.3-13 (discussing the issues to be addressed in the proceeding including many issues addressed by CARE in its Comments and Reply Comments). / First, it needs to be explained that, although the January 12, 2010 Scoping Memo, indeed, discussed issues addressed by CARE in its comments, it was not because CARE addressed those issues, as this claim implies: CARE’s comments simply responded to the Order Instituting Rulemaking 09-08-009 (OIR) questions posed to parties.
CARE devoted its work, in part, on commonplace information on issues that were not a subject to discussion in this proceeding, such as negative impacts of the fossil-fuel plants on low-income neighborhoods or advantages of the PEVs, etc.[5] At the same time, CARE did not understand[6] the critical importance of the issue of the Commission’s regulatory authority over the third-party electric charging service providers, which was to become the first to be resolved. CARE did not answer the Commission’s specific questions (no. 15) on this issue.
CARE’s statements on other issues would have a potential to contribute if only CARE were to develop its position. For example, CARE provided nothing more, either in the form of research or analysis or constructive proposals, beyond stating[7] that the negative impacts of the fossil fuel plants can be minimized by promoting the joint deployment of daytime electric vehicle charging stations and solar panels in parking facilities. While stating these concerns, CARE made no effort to answer the OIR’s specific relevant questions[8] aimed at the shaping the CPUC’s actions in this area.
We conclude that, while CARE indeed addressed some questions posed in the OIR, regrettably, CARE provided no specific insight or new specific information for the Commission’s consideration.
CARE’s reply comments on the OIR consist of repeating positions and argument of Natural Resources Defense Council (NRDC) and Friends of the Earth (FoE) or CARE’s October 5, 2009 comments.
During the second component of Phase 1, CARE filed the following documents with the Commission:
OPENING BRIEF REGARDING CPUC REGULATION OF THIRD-PARTY ELECTRIC VEHICLE SERVICE PROVIDERS (February 8, 2010);
REPLY BRIEF REGARDING CPUC REGULATION OF THIRD-PARTY ELECTRIC VEHICLE SERVICE PROVIDERS (March 1, 2010); and
OPENING COMMENTS ON THE PROPOSED DECISION IN PHASE 1 ON JURISDICTION OF THE COMMISSION OVER THE SALE OF ELECTRICITY AT RETAIL TO THE PUBLIC FOR THE SOLE USE AS MOTOR VEHICLE FUEL (June 10, 2010).
During the second part of the Phase 1 proceeding, the Commission addressed the complex issue of whether it retains jurisdiction over facilities that sell electricity to the public for use only as a motor vehicle fuel (“EVSPs”) under Public Utilities Code. CARE provided the Commission with a detailed legal analysis of the statutory interpretation issues involved (Opening Brief, pp. 1-6; Reply Brief, pp. 1-2; and Opening Comments, pp. 1-5) and the public policy reasons supporting Commission regulation of EVSPs (Opening Brief, pp. 6-9; Reply Brief, pp. 2-4; and Opening Comments, pp. 5-6), including the need for the Commission to:
(1) Ensure Grid Stability and Load Predictability;
(2) Level the Playing Field Between Utility and Non-Utility Providers;
(3) Encourage Rapid EVSP Market Development;
(4) Enhance Public Safety;
(5) Create Rules and Standards for Inter-operability;
(6) Foster Pricing Innovation;
(7) Prevent Market Manipulation; and
(8) Facilitate Uniform Incentive Systems Across All Users.
In its Proposed Decision, the Commission determined that it had no authority to regulated EVSPs. Proposed Decision, May 21, 2010, p. 1-20. CARE filed Opening Comments reemphasizing the need for Commission regulation and asserting that Public Utilities Code section 740.2 provided independent authority to regulate EVSPs:
The PD also relies on the recently enacted section 740.2 as support for its determination that EVSPs do not provide “power” to their customers and therefore the Commission does not maintain jurisdiction over EVSPs. Section 740.2, however, requires the Commission to “adopt rules to address . . . infrastructure upgrades necessary for widespread use of plug-in hybrid and electric vehicles and [to address] the role and development of public charging infrastructure.” Pub. Util. Code § 740.2(a). Subsection (a) thus seems to be directing the Commission to exert the exact authority that the PD is claiming that the Commission does not retain. To “adopt rules to address” the “development of public charging infrastructure” requires the Commission to retain authority over these “public charging” facilities, including EVSPs. Thus, contrary to the PD, section 740.2 supports the Commission’s exercise of jurisdiction over EVSPs.
Opening Comments, p. 5. CARE concluded: “The PD’s all-or-nothing approach to regulation does not address this middle-ground regulatory approach that many parties believe would not only be appropriate, but also extremely effective for achieving rapid deployment of EVs throughout the state.” Opening Comments, p. 6. / The Commission’s decision directly incorporates CARE’s suggestion that section 740.2 grants the Commission independent authority to regulate EVSPs. D.10-07-004, pp, 19-20; 24-25. Specifically, the Commission stated that “the enactment of § 740.2 . . . granted the Commission specific authority to implement rules necessary to facilitate the widespread deployment of electric vehicles in California.” Id. at 24-25. Further, the Commission “intend[s] to exercise this authority to the extent necessary based on our deliberations in Phase2 of this proceeding.” Id. The Commission also responded to CARE’s policy arguments in favor of regulation by identifying other sources of regulatory authority with which it will regulate EVSPs and by suggesting that the Legislature may need to address gaps in the Business and Professions Code vis-à-vis additional consumer protection measures. Id. at 25-28; 30-31. / This statement is incorrect. The decision does not directly incorporate CARE’s suggestion. CARE asserted that the CPUC has “the authority to regulate EVSPs to the same plenary extent as other public utilities”[9], and did not prevail on this issue.
The Commission concluded that under §§740.2 and 740.3, it has a limited authority to set rules related to electric vehicle charging. The Commission concluded that the legislature did not intend that the electric vehicle charging service (EVCS) providers be treated as public utilities; rather, the legislature intended that the Commission uses the authority granted in § 740.2 to address the potential impacts of EVC. (D.1007044 at 19-20). There is a difference, that CARE does not indicate, between the independent authority to regulate EVCSs and specific authority to implement rules necessary to facilitate the deployment of electric vehicles.
We disagree with CARE’s characterization of its contributions. CARE’s “detailed legal analysis” was limited to the formal analysis of meanings of the term “include” used in § 218(a), in a failed attempt to show that the Commission has the authority to regulate EVSPs as public utility. CARE’s CARE’s argument was weak and failed to trigger a discussion. CARE again neglected a difference between regulatory authority over EVSPs and the authority over terms of the transaction under which the utility will provide service to EVSPs.[10]
CARE asserts that the Commission responded to CARE’s policy arguments “by suggesting that the Legislature may need to address gaps in the Business and Professions Code vis-à-vis additional consumer protection.”[11] Unfortunately, CARE fails to provide a reference to its documents, where these arguments were presented. We reviewed CARE’s documents filed in this proceeding and found nothing more than statements of the general character that the Commission’s regulation of the EVSPs was necessary to protect consumers.[12]
B. Duplication of Effort (§§ 1801.3(f) & 1802.5):
Claimant / CPUC Verifieda. Was DRA a party to the proceeding? / Y / Correct
b. Were there other parties to the proceeding? / Y / Correct
c. If so, provide name of other parties: See Service List / Yes
d. Claimant’s description of how Claimant coordinated with DRA and other parties to avoid duplication or how Claimant’s participation supplemented, complemented, or contributed to that of another party:
During the initial component of Phase 1, the Commission solicited a broad range of responses to its 42 questions to identify and prioritize issues to be addressed in the proceeding. CARE complied with the Commission’s requirements by submitting answers to many of the 42 questions with suggestions of which issues required most attention. During the substantive stage of the Phase 1 proceeding, CARE avoided duplication of efforts by referring to and incorporating positions taken by other parties (to the extent feasible) in its Reply Brief and by not filing reply comments on the Proposed Decision that would have simply reiterated arguments that CARE and others had already made. / In many instances, CARE repeats, without complementing with its own independent material analysis and arguments, positions of other parties, for example, NRDC, DRA, SMUD, etc.
C. Additional Comments on Part II: